JUDGMENT - S.M. DAUD, J.:---This petition under Article 226 of the Constitution of India is aimed against an order purporting to fall under section 57 of the Bombay Sale tax Act, 1959 (BST Act or the Act). 2. Petitioner 1 is a firm registered under the Partnership Act whereof petitioner 2 is a partner. The firm is registered under the BST Act as also the Central sales Tax Act, 1956. For the Samvat years 2033 and 2034 corresponding to 24 October, 1976 to 11 November, 1977 and 12 November 1977 to 31 October 1978 respectively, the partnership was assessed under section 33 of the BST Act. This assessment was made by the Sales tax, Officer, respondent 2. The said officer did not pass any order of forfeiture/penalty under section 37 read with 46 of the BST Act. On a scrutiny the first respondent felt that during the Samvat years in question petitioners had collected Rs. 2,24,405.00 and Rs. 93,522.29 ps. as Sales-tax. This collection was contrary to law and was therefore liable to be forfeited. A show-cause notice calling upon the petitioners to reply as to why the aforementioned sum should not be forfeited and a penalty, levied elicited a reply, which may be summarised thus:--- "Petitioners were re-sellers of a various manufacturers including M/s. Morarji Dorman Smith Pvt. Ltd. When purchasing goods i.e. electrical goods, from the said company, the petitioners were billed as per the price list, less a trade discount whereupon was calculated the excise duty and sale tax payable by the seller. When re-sellers the goods some part of the trade discount was passed on by the petitioners to their purchasers. In order not to left these purchasers know the exact profit margin, the petitioners were recovering from them a surcharge to reimburse themselves for the amounts paid towards excise duty and sale tax. In other words, the petitioners were not recovering sales tax qua a tax payable by them to the State but reimbursing themselves for the price paid by them to their seller. This could not be said to constitute a violation of the statute. In support of this stand, the petitioners placed before the 1st respondent, affidavits and certificates issued by the customers. The material tender and submissions advanced did not carry conviction with the 1st respondent. This could not be said to constitute a violation of the statute. In support of this stand, the petitioners placed before the 1st respondent, affidavits and certificates issued by the customers. The material tender and submissions advanced did not carry conviction with the 1st respondent. He held that illegal collections had been made, that amounts collected had to be forfeited and the the full penalty of Rs. 2,000/- levied. Consistent with the findings, the first respondent passed the forfeiture and penalty orders impugned in the petition". 3. Petitioner re-agitate the submissions advanced by them before the 1st respondent. It is contended by them that "surcharge in lieu of sale tax" which was the expression construed by the 1st respondent in passing the impugned orders, did not mean that they had recovered from their customers amount payable as sale tax unto the State Government. While purchasing the goods from their purchaser they had paid components of a price made up of amongst other items, excise duty and sale tax. To recoup the price they could not but recover amounts paid by them under the heads "Excise Duty and Sales tax". At the same time they had passed on a part of the trade discount received by them from their seller. Not willing to disclose their exact profit margin, they had calculated the surcharge on account of excise duty and sales tax on the net sales price charged by them to their customers. The practice was common and known to be prevalent far and wide in the trade. The affidavits and certificates tendered by them conclusively established that there had been no infraction of section 46. Therefore, no order for forfeiture or penalty could be imposed under section 47 against them. This apart, respondent 2 had not taken any action against them under sections 37 r/w. 45 of the B.S.T Act. Under section 57 of the Act, the Commissioner could revise an order passed by a subordinate officer. He could not suo motu exercise the powers conferred upon Sale-tax Officer under section 37 r/w. 46 of the Act. For these reasons also the orders impugned were illegal. The said orders deserved to be quashed and that respondents be directed to refrain from enforcing the same. 4. The return submitted by the first respondent supports the impugned order. He could not suo motu exercise the powers conferred upon Sale-tax Officer under section 37 r/w. 46 of the Act. For these reasons also the orders impugned were illegal. The said orders deserved to be quashed and that respondents be directed to refrain from enforcing the same. 4. The return submitted by the first respondent supports the impugned order. It is contended that the petitioners had made illegal collections of sales-tax, though sale made by them were not taxable and though the collection made by way of sales-tax had not been passed on to the Revenue. Section 46(2) of the Act had been breached and for that reason the forfeiture and penalty imposed on the petitioners was justified. The impugned order was well within the purview of powers conferred upon the Commissioner under section 57 of the Act. The petition was premature in as much as the petitioners had preferred appeals to the Deputy Commissioner of Sales-tax (Appeals) which appeals were pending. The Appellate Authority had directed the petitioners to make part payment as a condition precedent for the admission of appeals. Petitioners had not compiled with that condition precedent nor got the same vacated by further proceedings under the Act. Therefore, they could not approach this Court in exercise of its ordinary jurisdiction. 5. The petition's outcome rests on answers to the three issues formulated below :- A) Whether Article 226 is the proper remedy qua the facts and circumstances of the case? B) Is the order of respondent 1 ultra vires section 57 of the Act ? C) Whether the orders of forfeiture and penalty is illegal ? 6. At the threshold the petioners have to meet the objections that recourse to the writ jurisdiction of this Court is unwarranted. Two points are made in this connection. Firstly that the petitioners have not exhausted the remedies provided by the Act before moving this Court and next, that the Court is in capacited from hearing this petition because it gives rise to disputed question of fact. Petitioners do not dispute the fact of their having preferred an appeal against the impugned order, the Appellate Authority directing them to deposit a portion of the sum payable, their not making the deposit and their not the deposit and their not impugning the same in a further appeal provided by the Act. Petitioners do not dispute the fact of their having preferred an appeal against the impugned order, the Appellate Authority directing them to deposit a portion of the sum payable, their not making the deposit and their not the deposit and their not impugning the same in a further appeal provided by the Act. The deviation is answered thus: The existence but not availing of a statutory remedy is not bar because (i) the petition challenges an order outside the scope of section 57 as also section 37 read with section 4 and (ii) pursuit of the statutory remedy is made conditional upon petitioners being required to deposit a sizable sum and in any case is time consuming, (iii) whatever be the position as to the applicability of Article 226, once a petition is admitted, there is no going back to questioning the correctness of the admission. So far as the first grounds is concerned, it is easily refuted by the answer that an appellate authority is not incompetent to rule upon the legality of the order. It was argued that the writ Court should not decline to deal with a petition that raises a question of general importance as does this one. The question or questions that arise are no more than those already covered by a plethora of authorities. More important Judges exercising the powers conferred by Article 226 have to be careful lest they encroach upon the High Courts power under an enactment like the BST Act. The 2nd and 3rd issues aforementioned could have been the subject of reference under section 61 of the Act. Such a references would have to be heard by a Division Bench and one assisted by a completed adjudication into facts by the duly constituted authorities. There is no gain saying the fact that a Bench hearing a reference is better placed than the writ Judge in the context of what stated above. The next justification advanced is equally slender. The condition of deposit of a part of the amount, if onerous, could have been impugned in the second appeal as is provided for by the BST Act. In any case, the petitioners having preferred an appeal could not forsake that proceedings because a condition of admissibility was found to be onerous. Conceivably, they could have questioned by a writ petition the imposition of the onerous condition. In any case, the petitioners having preferred an appeal could not forsake that proceedings because a condition of admissibility was found to be onerous. Conceivably, they could have questioned by a writ petition the imposition of the onerous condition. The last justification offered is little better than presenting the Court with a fait accompli and compelling it to decide the petition whatever be difficulties that arise on account of disputed questions of fact. This brings me to the plea about a writ petition being inappropriate where disputed questions of fact arise. In this petition parties are not at all agreed on the factual position. Petitioners assert that recovery of surcharge in lieu of sale tax recited in the bills issued to purchasers from them is recoupment for price paid by them to their vendors. That the levy is on price charged the purchasers is explained away as a device to conceal the trade rebate received by them and parted with in different proportions to their different purchasers. Respondent 1 refutes this assertion and wants me to read the bills as inclusive of a representation that the purchasers were required to pay sales tax which petitioners were recovering for them prior to the transmissions of the same to the Government. The explanation offered by the petitioners and the certificates/affidavits tendered in support thereof, is dubbed a concoction to retain ill-gotten gains. The factual stands of the rivals cannot be easily resolved and certainly not within the limits of an investigation permitted in a proceeding under Article 226. As I shall show later practically every sale made by petitioner in Samvat years 2033 and 2034 will have to be examined to reach a proper conclusion. That is neither possible nor desirable having regard to the parameters within which a writ Court functions. 7. Having regard to the foregoing a question aroses as to what should be done : To go on with the petition because it is pending since 1984 as was sought to be canvassed by Mr. Patil or to dismiss it in limine as was the suggestion made on behalf of respondents by Mr. Jetly? Dismissing a petition which has been pending since 1984 may sound harsh, but there would be no other course open when is impossible to decide the same having regard to the many deficiencies it suffers from . Patil or to dismiss it in limine as was the suggestion made on behalf of respondents by Mr. Jetly? Dismissing a petition which has been pending since 1984 may sound harsh, but there would be no other course open when is impossible to decide the same having regard to the many deficiencies it suffers from . Fortunately, there is a way out and that is to state the law applicable and this with reference to the differing stands of the parties. To this aspect of the matter, I shall revert after a resolution of the second and third issues. 8. Mr. Patil contends that section 57 of the Act of the Act was not available to respondent No. 1 seeing that respondent No. 2 had not even touched upon the assessee's alleged violation of section 37. By taking recourse to section 57 in the absence of the relevant question having been even touched upon, respondent No. 1 is said to have transgressed the limitations upon a Revising Authority. The scope of the revisional power was considered at length by the Supreme Court in (K.M. Cheria Abdulla Co's case)1, reported at (1965)16 S.T.C. 875 . The said decision was noticed in (The Swastik Oil Mills Ltd's)2, case reported at (1986)21 S.T.C. 383. in the later case, it was observed :- "In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K.M. Cheria Abdulla Co's case. These limitations are that the Revising Authority should not trench upon the powers which are expressely reserved by the trench upon the powers which are expressly reserved by the Acts or by the Rules to other authorities and should not ignore the limitations inherent in the exercise of those powers." Now, it will be necessary to notice section 57 of the Act. The portion of that section material for our purposes reads thus :- 57. The portion of that section material for our purposes reads thus :- 57. (1)------ (a) the Commissioner may of his own motion call for and examine the record of any order passed (including an order passed in appeal) under this Act or the Rules made thereunder by an officer or person subordinates to him and pass such order thereon as he thinks just and proper." The impugned order was preceded by a notice which followed a scrutiny of the assessment orders passed by respondent No. 2. The notice recited that the dealer had collected surcharge in lieu of sale-tax at 10% in respect of sales claimed to be second sales in the return and allowed as resales in the assessment order. and that it was proposed to forfeit the surcharge as also levy a penalty. The portion from section 57 reproduced above does not contain any limitation. The Commissioner is given the jurisdiction to send for an examine the record of any order passed under the Act or the Rules. The order has that to be of an officer or person subordinate to him. After the prescribed hearing the Commissioner is empowered to such orders as he thinks "just and proper' The power of forfeiture and imposition of penalty Assuming the same to be vested in the authority of the first instance, would yet to be the exercise of a power by an officer or person "subordinate' to the Commissioner as contemplated by section 57(1)(a). The second respondent's commission to notice the alleged transgression of section 37 by the dealer was decided unjust and improper. Therefore, the Commissioner had the jurisdiction to correct the mission by exercise of revisional power. That is the answer given by Mr. Jetly and he relies upon the (Commissioner of Sale Tax, M.P. v. Tommatlal Prahaladrai)3, reported at (1983)54 S.T.C. 392 in support of the submission. That was a decision arising upon a reference made at the instance of the Commissioner of sale Tax to the M.P. High Court. The assessing authority and the first Appellate Authority had not considered the imposition of the penalty upon the dealer. The Commissioner took matter in sou motu revision being in the view that the appellate order was erroneous and prejudicial to the interests of the revenue. The penalty imposed by the Commissioner in revision was impugned in an appeal to the Tribunal. The Commissioner took matter in sou motu revision being in the view that the appellate order was erroneous and prejudicial to the interests of the revenue. The penalty imposed by the Commissioner in revision was impugned in an appeal to the Tribunal. The Tribunal set aside the order. Upon an application made, the Tribunal made a reference to the High Court. The High Court held that the Appellate Authority while hearing an appeal and finding that the circumstances of the case show that the dealer was guilty of concealment of turnover could take proceedings for imposition of penalty. By failing to take action and retraining from imposing penalty, the appellate authority had passed an order which was liable to be revised by the Commissioner. A decision more opposite is that in (Commissioner of Sale Tax, Maharashtra State Bombay v. Indian Tube Company Ltd.)4, (1981)47 S.T.C. 448 . In that case, the Sales Tax Officer did not include in the taxable turnover, the turnover of certain sales assessessable to tax. The Division Bench speaking through Madon, J., (as his Lordship then was) held that the Sales Tax Officer in not including the turnover of sales in the taxable turnover had acted with impriority and irregularity in the assessment proceedings. The power of revision was one vesting the revisional authority with the jurisdiction to examine the correctness, legality and propriety of the order under considerations. In a case giving rise of an order, the revisional jurisdiction was attracted. Quote in support of the view take was an observation from the Swastik Oil Mills Ltd's case (supra) :--- "Whenever a power is conferred on an authority to revise an order the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it." The amplitude of the power being wide the impugned order cannot be quashed on the ground that it is beyond the scope of revisional power lodged in section 57 of the Act. 9. So far as the last question is concerned, the true facts will have to be ascertained by the statutory authorities. Petitioners had placed before respondent No. 1 affidavits and certificates reciting the case set forth by the petitioners. 9. So far as the last question is concerned, the true facts will have to be ascertained by the statutory authorities. Petitioners had placed before respondent No. 1 affidavits and certificates reciting the case set forth by the petitioners. Their assertion was that the bills issued by them in relation to the sales when they pertained to the item of "surcharge in lieu of sales-tax" sale-tax" related to nothing more than their seeking to recoup themselves for a portion of the price paid by them to their vendors. That the surcharge was calculated upon the net price was only with a view to preserve a trade secret viz. conceal from the customers the exact rebate the petitioners had received from the manufacturers. Mr. Patil supports this submission by pointing out that the bills issued in favour of the customers also recited a recovery made under the head "surcharge (the on excise duty)" It was argued that this method of billing was only to enable the petitioners to recover the price which they had paid under different heads to their vendor, and at the same time, prevent that customers from knowing the exact trade discount that the vendor had granted to them. Some of the bills issued by the petitioners to the customers have been placed on record and a scrutiny of anyone of them will suffice to assess the contentions of parties. On 14-10-1978 the petitioners issued a bill in name of Scheme Engineers of Bombay. That Party had purchased two items the price being Rs. 1,698.00 There from, the party was given a discount at 15% coming to Rs. 254.70 p. This brought the net price to Rs. 1,443.30 ps. The petitioners added to this net price two items of surcharge first, in lieu of excise duty and the second in lieu of sale tax. The surcharge in lieu of sale tax was upon the sum representing the total of the net price plus the excise duty . The customer was billed for the total sum of Rs. 1,667.00. The word "surcharge" has been defined in the Chamber 20th Century Dictionary as "an overcharge" an "exact charge". Where this word is prefixed to item like excise duty and sales tax, it can be understood in the sense petition wanted it to be understood. The customer was billed for the total sum of Rs. 1,667.00. The word "surcharge" has been defined in the Chamber 20th Century Dictionary as "an overcharge" an "exact charge". Where this word is prefixed to item like excise duty and sales tax, it can be understood in the sense petition wanted it to be understood. To that effect is the assertion of petitioners as also the customers whose signature are append to the certificates and affidavits relied upon. The 1st respondent declined to go by this material. According to him, the computation in the bills showed : "that it is not the intention of the assessee to include only the exact taxes and excise duties paid either by assessee or his vendor or vendors which purchasing the goods from his vendors. Because from the unit price charged in the beginning of the Bill No. 658 dated 14-10-1978 dealer has deducted 15% as discount and on the price so arrived, added 5% excise duty---Thus discount varies from item to item, party to party but surcharge in lieu of sale tax is calculated at the rate of flat 5% and 10% therefore---it is clear that calculated at the dealer does not reimburse himself the exact amount of sale tax paid by him on his purchases while effecting sales to the customers. Because the actual purchases price is always less than whatever advantages are passed on to the customers by way of variable of discount. Thus he collects amounts in excess of taxes paid on purchases." Simply put, respondent No. 1 negativated the plea of petitioners that they were recouping themselves for the price paid to their vendor who had billed them under different heads. and in their turn billed their customers under different heads, and the same time preserved a trade secret. The law on the subject was laid down long ago (Mather and Patil Ltd. v. State of Maharashtra)5, (1983)53 S.T.C. 104 . That judgment was delivered by the Division Bench upon two references made by the Sales Tax Tribunal at the instances of dealers. The sales in those cases were covered by two types of bills, one reciting 3% sale-tax and the other surcharge on account of sales tax paid by us". That judgment was delivered by the Division Bench upon two references made by the Sales Tax Tribunal at the instances of dealers. The sales in those cases were covered by two types of bills, one reciting 3% sale-tax and the other surcharge on account of sales tax paid by us". The judgment of the Bench was delivered by Chief Justice Madon and his observations made on the occasion to the extent relevant were thus:- "The bill which is on record in Sale Tax Reference No. 10 of 1978 describes the amount collected as" 3 percent surcharge on account of sale tax". There is nothing to show in this bill that this is the amount which the applicant had themselves paid to vendors in respect of the amount of sale tax which the vendors are liable to pay to the Government on their sale to the applicants---There is nothing on the face of the bill to show that this amount was to reimburse the applicant in respect of the amount of sale tax recovered from them by the vendors. On the contrary, it would lead a person to believe that this surcharge represents the amount which the applicant would be liable to pay to the Government by way of sales tax. The real question is what representation the applicant made to their customers. Such representation is contained in the bills made to issued by the applicants, and the representation contained therein is that this amount was the amount of sale tax to the Government while in fact they were not liable to pay any sales tax to which the applicants were liable to pay any sales tax to the Government. This was thus a clear violation of section 46(2) and the amount so collected was, therefore, liable to be forfeited under section 37(1) and was thus righty forfeited." Dealing with the other type of bill, His Lordship observed : "Further even in respect of the type of bill in which the amount is collected by the applicants on account of sales tax paid by them, such amount is calculated not on the actual price paid by the applicants to their vendors. But on the price charged by them to their own customers. Here too the amount collected by the applicants is thus in excess of the amount paid by them to the vendors. The question, therefore. But on the price charged by them to their own customers. Here too the amount collected by the applicants is thus in excess of the amount paid by them to the vendors. The question, therefore. which fall to be decided is whether in such cases what is required to be forfeited is only the excess amount or the entire amount collected by the applicants for there is no dispute that had the applicant in these cases collected from their customers the exact amount recovered from them by the or own vendors such amount would not be liable to forfeiture--- If a purchaser from whom his seller has so recovered the amount of tax recoups such amount paid by him from his own purchasers when he comes to resale the goods, he is not prohibited by the Act from doing so, long as he does not represent to his own purchaser that this is the amount of tax which he was liable to pay by way of tax. In thus recouping himself he is really increasing his sale price with a view to reimburse himself for an extra item of cost. There is no prohibition under the Act against a reseller thus reimbursing himself by increasing his selling price and in our opinion whether he does so by increasing the selling price or by showing the amount by way of tax collected from him by his own vendor as a separate item in the bill makes no difference, so long as the purchaser is not led to believe that the amount charged to him is the amount which the seller would be liable tom pay as tax to the Government when he is not liable to pay it, there would be no contravention of section 46(2). In the type of bill we are considering the representation made by the applicant was that their vendor had collected from them certain amount by way of sales tax which their vendors were liable to pay to the Government and they, that is the applicant were reimbursing themselves in respect of such amount. In the type of bill we are considering the representation made by the applicant was that their vendor had collected from them certain amount by way of sales tax which their vendors were liable to pay to the Government and they, that is the applicant were reimbursing themselves in respect of such amount. However, here the applicant have recovered from their customers a larger amount than the amount paid by them to their vendors on account of sales-tax .This excess amount was not payable by way of tax and in the particular facts and circumstances of this case and the type of bills we have before us, such excess amount must be taken to be as amount collected by way of tax when in fact it was not payable by way of tax. It is, therefore, only the excess amount so collected by the applicants which can be said to be in contravention of section 46(2) and the entire amount so collected by them. To the extent the bills recited the item of surcharge in lieu of sales-tax, the customers was put on notice that he was being required to pay an extra or overcharge. The representation was not that the recovery was by way of tax payable by him to the Government which the petitioners were recovering form him for eventual transmission to the Government. After all it stands to reason that petitioners who had paid their vendors a certain price made up of different components such as catalogue price minus the trade discount and that the net price so arrived at being enhanced by increase on account of excise duty and sales tax would recoup themselves. By passing on whatever burden could be passed on their customers. Mr. Patil points to the bills made out in favour of customers showing a surcharge on account of excise duty as supporting his stand. Mr., Jetly's answer is that the Excise Act may not be containing a provision similar to sections 37 and 46 of the S.T. Act, and that the point of issue will have to be decided on the basis of what the B.S.T. Act says. This is a somewhat extreme stand and when judging a situation , one has to go by probabilities. This is a somewhat extreme stand and when judging a situation , one has to go by probabilities. The bill made out in favour of the petitioners by their vendors indicate that what the vendors were paid represented a total made up of different heads. These heads included the item of excise duty and sale-tax. Petitioners are stockiest of different manufacturers and receive a discount from their principals. When dealing with their customers, some part of the discount is passed on by the petitioners to these customers. The sales are in respect of goods which have what is known as a catalogue price. If the petitioners passed on a part of the trade discount and did not recoup themselves for the charges on account of excise duty and sale tax, they would be incurring heavy losses. From this, it follows that to the extent the surcharge in lieu of sale tax corresponds to a reimbursing of the amount paid by them to their vendor on that amount, the petitioners are not contravening section 37(1)(a)(ii) of the Act. It was argued that bills as framed gave the impression of petitioners recovering sales tax from their customers and this because of their being liable to pay the same to the State Government, when in fact, the petitioners were not so liable . Now, no party is to be penalised from mistakes in preparation of bills. In mather and Platt Ltd.'s case (supra) the first type of bills was the only evidence before the Court, thus compelling it to hold that a false representation had been made to the purchasers from the dealer. That is not the position here. Petitioners have documentary evidence in the sense of the bills issued in their favour by their vendors and also the bills issued by them in favour of the purchasers. Next, it is not as if the word "surcharge" is susceptible of only one meaning viz. petition were recovering a sum by way of tax. As said earlier, the word "surcharge" appearing in the bill tends itself to the interpretation of being an over charge, an extra charge made by the petioners to reimburse themselves for a component of the price paid by them to their vendors. This however does not mean that the petitioners' version has to be accepted in entirety. As said earlier, the word "surcharge" appearing in the bill tends itself to the interpretation of being an over charge, an extra charge made by the petioners to reimburse themselves for a component of the price paid by them to their vendors. This however does not mean that the petitioners' version has to be accepted in entirety. In so far as the surcharge in lieu of sales tax is calculated on the total of net price plus the excise duty, it cannot be said that petitioners are recovering no more than component of the price paid by them to their vendors. To the extent, the sales tax is calculated in excess amount paid by them towards sales tax to their vendors, there is a contravention of section 37(1)(a)(ii). It is the recovering of the excess amount collected by the petitioners which amounts to a contravention of the law, and therefore, liable to forfeiture. This is law as expounded in Mather and Platt Ltd.'s case and as applied to the facts of the present case amounts to this :- 1. Mere recovery of surcharge in lieu of sales tax is not contravention of the law, provided however that the amount so recovered corresponds to the amount paid by way of sale tax by the petitioners by their vendors. 2. To the extent there be an excess the petitioners have contravened the law. The excess amount so recovered shall be liable to forfeiture. The first respondent will have to re-ascertain the factual position and then apply the law as set out above. The order passed by him will therefore have to be quashed and the proceedings remitted back to him for a fresh determination in accordance with the observations made above and the law applicable. Rule in these terms made absolute, with parties being left to bear their own costs. Order accordingly. ------